Wigneswaran wins two, loses three

September 28, 2013, 6:03 pm

If anybody got a flying start in politics, it has to be C.V. Wigeswaran. Not only has he been given a ringing personal endorsement by the people of the North with over 132,000 preference votes, the party he led at the election got 78% of the votes. This victory is in many ways reminiscent of the victory scored by A. Amirthalingam at the 1977 general elections. There are similarities going beyond just the percentage of votes received. There are striking similarities between the TULF manifesto of 1977 and the TNA manifesto of 2013; the only difference being that a separate state was expressly mentioned in the 1977 manifesto whereas it is only implicit in the 2013 document. Be that as it may, the TNA victory was impressive by any reckoning and this is a personal victory for Wigneswaran who achieved it in a situation where the TNA was fractured and disunited as never before.

A few days after the election victory, the TNA and by association Wigneswaran, received another boost from the oral statement submitted by fellow Tamilian Navi Pillay to the UN Human Rights Council where she had incorporated many of the TNA demands such as the implementation of the 13th Amendment, reducing the military presence in the north, halting the acquisition of private land for setting up military installations, eliminating the presence of the military in civilian administration and economic activity etc. Pillay had also called for an ‘independent and credible investigation’ into allegations of violations of international human rights law and international humanitarian law – which is in effect a call for a war crimes probe.

Such a statement by the UN Human Rights Commissioner and the ultimatum issued by her to the government to put things right by March 2014 also creates hope that self- determination for the TNA with the help of the UN is almost at hand. But just as the Northern Provincial Council was about to be set up, a judgement was delivered by the Supreme Court which fundamentally alters the line up on the chessboard for the TNA. One of the key platforms on which the TNA campaigned was to acquire control over land in the Northern Province and also to establish the provincial police force provided for in the 13th Amendment. But in a landmark judgement delivered last Thursday, the Supreme Court struck down the provincial land powers on which the TNA had pinned such high hopes.

Landmark case

This court case which we will refer to as the "Solaimuttu Rasu case" for the sake of brevity, was litigation that had been in the courts system for a very long time. By some quirk of fate the final judgement came on the eve of the swearing in of the Northern PC. This could not possibly be by design – this is one of those happy coincidences that come at the most appropriate times. The Solaimuttu Rasu case came before courts for the first time in 1995 with the State Plantations Corporation initiating proceedings in the Magistrate’s Court of Nuwara Eliya to recover a State Land which had been illegally occupied by one Solaimuttu Rasu. The Magistrate’s court issued a quit notice on the occupant. Rasu then filed an application in the Central Province High Court of the Province praying for a writ of certiorari to quash the quit notice issued by the Magistrate’s Court. The State Plantations Corporation filed preliminary objections in the Central Province High Court in February 1996 arguing that the said land is a State Land and that a quit notice had been issued to Solaimuttu Rasu under the State Lands (Recovery of Possession) Act No 7 of 1979, and therefore Rasu has no legal basis to invoke the writ jurisdiction of the Provincial High Court.

It should be noted that the State Lands (Recovery of Possession) Act No 7 of 1979 is a very practical piece of legislation whereby a government authority can issue a quit notice on anyone deemed to be in illegal occupation of a piece of state land coming under its purview and he who is issued with such a notice has to quit the land within one month. If the occupier fails to do so, the government authority can file a case at the magistrate’s court and the magistrate can after due inquiry issue an ejection notice. The police are authorised to apply force in implementing such an ejection order. Furthermore, no one can appeal to a higher court against an ejection order issued by a magistrate. These provisions alone would have sufficed to turn things in the State Plantations Corporation’s favour. But what made things the smelly stuff hit the fan was the SPC’s argument that The High Court of the Central Province does not have the jurisdiction to hear and determine this matter as the subject of State land does not fall within the Provincial Council List.

The Provincial High Court, after much deliberation, held in a judgement delivered in November 2000 that State land was not a subject coming under the PCs and therefore, it had no jurisdiction to hear and determine Solaimuttu Rasu’s application. A few days later, Solaimutu Rasu petitioned the Court of Appeal against the judgement of the Central Province High Court. The Court of Appeal decided in August 2012, that the subject of State Land comes under the Provincial Councils according to the Ninth Schedule of the Constitution; and hence, the High Courts of the Provinces do have the power to hear applications relating to State land.

Then the State Plantations Corporation went to the Supreme Court against the Court of Appeal judgement. Three judges of the Supreme Court, Chief Justice Mohan Pieris, Justice K.Sripavan, and Justice Eva Wanasundera, delivered three different judgements each one separately holding that according to the 13th Amendment, State land comes under the central government and not in the provincial councils. The arguments put forward by the three judges can be summarised as follows.

Appendix II of the Ninth Schedule of the Constitution which deals with the subject of land begins with an unequivocal opener -"State Land shall continue to vest in the Republic and may be disposed of, in accordance with Article 33 (d) and written laws governing the matter." CJ Mohan Peiris opined that this peremptory declaration is a pointer to the fact that State Land belongs to the Republic and not to the Provinces. (Article 33(d) of the constitution refers to the president’s exclusive power to dispose of land belonging to the republic.) Hence dominium over all ‘State Land’ lies with the Republic and not with the Provincial Councils.

The list of powers of the central government in the Ninth Schedule of the constitution clearly states that "State Lands and Foreshore" comes under the central government.

Item 18 of the provincial councils list of powers in the Ninth Schedule of the constitution specifies that PCs will have land powers only as follows:

"Land - Land that is to say, rights in and over land, land settlement, land tenure, transfer and alienation of land, land use, land settlement and land improvement to the extent set out in Appendix II". The use of the phrase "that is to say" carries with it the notion that what is allocated as land powers to the provincial councils is all that is specified in item 18 and nothing more. Hence the provincial council powers over land is restricted to "rights in and over land, land settlement, land tenure, transfer and alienation of land, land use, land settlement and land improvement".

The 13th Amendment to the Constitution refers to State Land and Land in two different places. The entirety of State Land is referred to only in the central government list and it is only from this germinal origin that the Republic could assign land to the Provincial Councils. The Centre has not ceded its dominium over State Lands to the Provincial Councils except in some limited circumstances. If the entirety of state land is not assigned but only a portion with conditions, that would demonstrate an unequivocal intention not to cede what belongs to the Republic.

Referring to item 1.1 of Appendix II (on land powers) of the 9th schedule to the constitution, the chief justice pointed out that if the central government needs to utilise a piece of State land in a Province, for a purpose coming under the central government, the central government is required to consult the relevant Provincial Council with regard to such matter. But the CJ averred that ‘consultation’ does not mean ‘concurrence’ of the Provincial Council. Besides, he held that despite the requirement to consult the provincial council, it still does not change the fact that the State Land which the government requires continues to vest in the Republic.

*Referring to item 1.2 of Appendix II of the 9th schedule to the constitution, the CJ pointed out that it is the central government that shall make available to every Provincial Council State Land within the Province required for a Provincial Council subject. Only after such land is provided to the provincial council by the central government, does the Provincial Council have the power to ‘administer, control and utilize’ such State Land. Hence it defies logic and reason to conclude that State Lands is a Provincial Council Subject in the absence of a total subjection of State Lands to the Provincial Councils.

Referring to item 1.3 of Appendix II of the 9th Schedule, the CJ also points out that the Alienation of State Land within a Province to any citizen or to any organization shall be by the President, on the advice of the relevant Provincial Council and that this provision once again emphasizes the overarching position inherent in the 13th Amendment that State Land will continue to vest in the Republic and may be disposed of by the President. The CJ also held that this advice that the president is required to seek from the provincial Council is non-binding because the word ONLY had not been used to qualify the term "on the advice of the provincial council". Since the advice of the Provincial Council is non-binding, the power of the President to alienate or dispose of State Land in terms of Article 33 (d) of the Constitution and other written laws remains unfettered.

Paragraph 3 of Appendix II which provides for the establishment of a National Land Commission by the Government declares in 3.1 that the National Land Commission will be responsible for the formulation of national policy with regard to the use of State Land. It is apparent that Provincial Councils will have to be guided by the directions issued by the National Land Commission and this too reinforces the contention that State Lands lie with the Centre and not with Provincial Councils.

Article 154 (G) (7) of the Constitution provides that a Provincial Council has no power to make statutes on any matter set out in the central government list. One of the matters referred to in the central government list is "State Lands and Foreshore". The irresistible conclusion is that provincial council powers in relation to State Lands would be restricted to "administer, control and utilize State Land", if such state Land is made available to the Provincial Councils by the Government for a Provincial Council subject.

Quoting Justice Mark Fernando, in a Special Determination regarding the Agrarian Services (Amendment) Bill, Justice K.Sripavan averred that it is not possible to decide which list of powers a subject belongs to by merely looking at the items in those lists. The items listed and the descriptions thereof may not be comprehensive. As far as possible, an attempt must be made to reconcile entries in Lists I ,II and III of the Ninth Schedule of the Constitution and the Court must avoid attributing any conflict between the powers of the Centre and the Provinces.

In terms of item 1.2 of Appendix II of the 9th Schedule, a Provincial Council can utilize "State Land" only upon it being "made available" by the Government. This implies that a Provincial Council cannot appropriate state land to itself without the central government making State Land available to them.

Item 1.3 of Appendix II of the Ninth Schedule, deals with alienation of State Land within a province by the president upon an advice made by such Provincial Council. The advice tendered by the Provincial Council does not bind the President, but after the President decides to dispose of the State Land, he can dispose of the land only according to laws enacted by Parliament. The Provincial Councils therefore, are only subsidiary bodies, exercising limited legislative powers subordinate to that of Parliament.

The fundamental principle of constitutional construction is to give effect to the intent of the framers and of the people adopting it. Therefore, it is the paramount duty of this Court to apply the words as used in the Constitution and construe them within its four corners.

Justice Eva Wanasundera stated that it is abundantly clear that land in item 18 (of the provincial councils list) cannot include dominium over State Land. The devolution of State Land to the Provinces undoubtedly is subject to it continuing to be vested in the Republic. There is no doubt that the President’s power to make grants and dispositions according to existing law remains unfettered.

Provincial police powers

The other great demand of the TNA which is mentioned in the same breath as land powers is police powers. Some time ago, this columnist argued that provisions for provincial police forces no longer exist in the constitution because of the 18th Amendment. Close scrutiny of the 13th, 17th and 18th Amendments indicates quite clearly that the police powers allocated to the province through the 13th Amendment have now disappeared from the statute books. Police powers feature very prominently in the 13th Amendment to the constitution. It is the first item on the list of powers devolved to the provincial councils. Apart from that, Appendix 1 of the Ninth Schedule of the Constitution (which was introduced through the 13th Amendment) has set out in detail how the provincial police service should function in relation to the national police service.

Then came the 17th amendment to the constitution which stipulated that the power of appointment, transfer, disciplinary control of police officers would be exercised by a National Police Commission. Article 155G(b) of the 17th Amendment specifically stated that the National Police Commission shall not in the exercise of its powers, derogate from the powers and functions assigned to the Provincial Police Service Commissions as and when such Commissions are established under Chapter XVIIA of the Constitution. The reference to ‘Chapter XVIIA’ of the constitution is a direct reference to the 13th Amendment. Thus the 17th Amendment accommodated the devolution of police powers to the provinces. But the same cannot be said about the 18th Amendment. The 18th Amendment made many changes to the provisions of the 17th Amendment.

The most game changing provision in the 18th Amendment in relation to police powers is the complete repeal of Article 155G of the constitution which was introduced by the 17th Amendment. As we saw earlier, it is through Article 155G(1)(b) that the 17th Amendment ensured that the powers vested in the Provincial Police Commissions by the 13th Amendment remained intact. With the repeal of this article, there is no provision in the constitution for the existence of a provincial police force any more. Some may argue that the 17th Amendment went, and the 18th Amendment came, but that the police powers given to the provinces in the 13th Amendment remain intact. But it doesn’t happen like that in constitutions. The 17th Amendment made sweeping changes to the way the police force was to function.

It was because such sweeping changes were made in the existing law with regard to the police including the provisions introduced by the 13th Amendment, that it became necessary to specify in the 17th Amendment that the setting up of the powerful National Police Commission does not in any way impede the police powers that were to be devolved to the provinces. If not for Article 155G(1)(b) of the 17th Amendment, everything said in the 13th Amendment about police powers would have been rendered null and void with the promulgation of the 17th Amendment. So long as the 17th Amendment was in force, Article 155G(1)(b) provided room for provincial police powers. But now that Article 155G of the 17th Amendment has been repealed in toto, no such thing as provincial police powers exist.

As far as the 18th amendment is concerned, there is only one national police force, and the power of appointment, transfer, disciplinary control and dismissal of public servants including the police will vest in the Public Service Commission (according to Article 8 of the 18th Amendment.) There is no room anywhere in the 18th Amendment for the existence of a provincial police force that will come under the purview of provincial police commissions as envisaged in the 13th amendment. The reason why many people believe the provisions for a provincial police force still exist is because of the erroneous belief, that the 18th Amendment repealed the 17th Amendment thus allowing the earlier provisions in the 13th Amendment to fall back into place. But the 17th Amendment was never repealed, it was amended by the 18th Amendment and the course of that amendment, the window left open by article 155G(1)(b) for a provincial police force was closed. When this columnist first made this argument, Prof. Mark Cooray – a former Macquarie University constitutional law expert – said he too agrees with this view.

Poaching by Indian Tamil fishermen

So we see that even before he commenced duties, Wigneswaran has lost both land and police powers. His third defeat is yet to take place. The first meeting with a foreign dignitary lined up for the new chief minister of the north is a meeting with Jeyalalitha Jeyaram the chief minister of Tamil Nadu. The most pressing problem faced by the fishermen of the Northern Province is the poaching by Indian trawlers in Sri Lankan territorial waters. The TNA significantly, made no mention of this issue in their manifesto. Fisheries do not come under the list of provincial powers and that could be their excuse for not including this issue in their manifesto. The only instance in which the TNA has scrupulously restricted themselves to the provincial councils list is with regard to fisheries! On all other matters other than fisheries, the TNA demands more and more powers going right up to self determination. But they don’t seem to want self determination in the fisheries sector.

Even though fisheries does not appear in the provincial council list, it does appear in the concurrent list and fisheries is one of the two most important occupations in the north. Therefore the new chief minister of the Northern Province cannot duck his responsibilities in this sector. Fortunately, it so happens that Dr Rajitha Senaratne the minister of fisheries, is an advocate of the devolution of power. So he must devolve some of his responsibilities to Wigneswaran and get the latter to use his good offices with the chief minister of Tamil Nadu to stop the poaching. Senaratna should stop calling for the confiscation of Indian fishing trawlers and other such draconian measures. Similarly, the Navy should stop arresting Indian fishermen as such things only strain relations between India and Sri Lanka and give Tamil Nadu cause to complain.

The man who deals with the problem of poaching should be the regional leader Wigneswaran who has been appointed with an overwhelming mandate to attend to such matters. Only northern Tamil fishermen are affected by the Indian poaching. So Tamil nationalism should be put to work to solve this problem. Will the nationalist Tamils in Tamil Nadu stand with the nationalist Tamils of northern Sri Lanka and stop stealing the latter’s fish? Henceforth, if the navy takes action against Indian trawlers poaching in northern waters, it should be specifically in response to a well publicised request by the Northern Province chief minister to the government in Colombo and not otherwise.